NLRB Issues Controversial New Election Procedures Effective April 30, 2012

As reported in earlier legal updates in December 2011, the National Labor Relations Board (NLRB) issued new, highly controversial rules regarding representation elections. On April 26, 2012, NLRB General Counsel Lafe Solomon issued the Board's new representation election procedures that will implement these rules. The new procedures apply to certification and decertification elections. The net effect of these procedures will be to decrease the time between the filing of an election petition and the election being conducted, the deferment of important issues to post-election proceedings, and the complete denial of resolution of certain representation issues. These procedures achieve this end using a variety of means, including:

• Scheduling pre-election hearings five work days from the petition filing
• Allowing unions to waive the right to have the voters' eligibility list for 10 days before the election, allowing elections to be held less than 10 days after voter eligibility list issuance
• Narrowing of the purposes for which voter eligibility pre-election hearings will be conducted, generally only allowing them when more than 10 percent of the petitioned-for bargaining unit is disputed
• Requiring employees regarding whom the parties cannot come to agreement who comprise 10 percent or less of the petitioned-for bargaining unit to vote subject to challenge at the polls
• Allowing no hearing of supervisory taint issues before the election, but rather resolving them through an administrative investigation
• Deferring to post-election procedures (or not at all) issues of whether a petitioned-for individual is a managerial or confidential employee, employed by a parent or spouse, or any issue involving less than 10 percent of the petitioned-for bargaining unit
• Generally allowing only oral arguments at hearing conclusion, with post-hearing briefs or other submissions only at the hearing officer's discretion
• Allowing the Regional Director to decide if an election objection or challenge is supported by sufficient evidence to warrant a post-election hearing, with no further recourse
• Allowing the Regional Director, rather than the NLRB in Washington, to decide on any exceptions to the Hearing Officer's reports
• Allowing the NLRB to reject a request for review of the Regional Director's decisions on exceptions
• Issuing an election certification that will state that the challenged classifications are neither in nor out of the bargaining unit when employees vote subject to challenge and the challenges are not outcome determinative
• Removing the prior NLRB guidance that the Board should not schedule elections less than 25 days following a direction of election

Because of the quick (or no) pre-election hearings, waiver of the 10-day voter eligibility list requirement, and elimination of the 25-day guidance for election scheduling, the time between petition and election likely will decrease from the current 42 days to approximately 14 days (or maybe less). This will give employers almost no time after receiving an election petition to educate employees about the downsides of unionization that the unions will not tell them.

Employers interested in determining proactive steps they can take now to ensure their workforce is prepared to make an educated decision concerning unionization should consult labor counsel. In addition, because supervisors may be allowed to vote in an election "subject to challenge," this reinforces the need to have a comprehensive strategy to establish the supervisory status of appropriate job classifications and ensure your supervisors know and are prepared to carry out their role in your overall labor relations program.

For more information on the labor relations strategies you should consider in light of these new procedures, contact any Faegre Baker Daniels labor attorney.